目的論的解釈への道

カラーフィーの法理論にみるマスラハ概念より

抄録

Maslaha has received considerable attention from scholars as a crucial principle which guarantees the developing tendency of Islamic society since the early 20th century. This paper attempts to show its importance in the lslamic legal theory which has been evolved to expand and adapt the established authoritative doctrines in the changing circumstances. Qarafi (d. 684/1285), who is famous for his theory of qawa'id (legal precepts), evolved the concept of maslaha which had been defined as ‘the preservation of the purpose of law (God's legislation)’ by Ghazali to the source of a valid and concrete methodology for creative law findings in his theory of qawa'id. He could legitimate goal-oriented and substantive interpretations by applying considerations of maslaha not only as a criterion to identify a 'illa's suitability but as an indispensable stipulation for some legal principles such as rukhsa (legal license) and sadd al-dhara'i‘(blocking means). Maslaha functions to legitimate his legal theory as a whole which purposes to give mujtahids’ legal methodology to muqallids so as to be depended in their law findings. The origin of maslaha is God, i. e. the prime authority in Islam; thus Qarafi could make use of this concept as the origin of all law findings in structuring his legal theory. Maslaha is the key concept to understand the legal theory and practice in the post-formative period of Islamic jurisprudence.